Category Archives: Defense lawyering (good and bad)

Five days ago, we happily posted here that the Texas Court of Criminal Appeals had overturned Hannah Overton’s conviction for murdering her 4-year-old stepson by salt poisoning. The basis for the ruling was ineffective assistance of counsel, and we bemoaned the fact that the court let the prosecutor off the hook for egregious Brady violations.

Well … the happy ending is still a long way off. The day after our posting, on October 18, 2014, Nueces County DA Mark Skurka announced that his office will retry Hannah Overton.

Given the evidence that the prosecutor had early on, and did not disclose to the defense, Overton never should have been charged in the first place. This was a “crime” that never happened.

The Texas Court of Criminal Appeals has granted Hannah Overton a new trial based upon her claim of “ineffective assistance of counsel” (IAC). She has served seven years of a life sentence for capital murder in the death of her 4-year-old stepson who died of a sodium overdose (salt poisoning). She truly did have ineffective assistance of counsel, because her attorney did not present the videotaped deposition of a salt poisoning expert saying that the overdose was likely unintentional, and there was nothing she could have done.

But here’s the part of the story that really gets me. Overton had also filed a claim that the prosecution had withheld exculpatory evidence (Brady violation), and the court was presented with both the IAC claim and the Brady claim. In it’s ruling, the court declined to rule on the Brady claim, saying it was unnecessary since they had granted a new trial based upon the IAC claim. They let the prosecutor off the hook.

Yesterday, Susan Mellen was released from prison after doing 17 years for a murder she did not commit. She was serving a term of life without the possibility of parole.

Thanks in large part to the work of the organization Innocence Matters, a year-long investigation revealed that she was convicted solely on the basis of testimony from a woman who was proven to be a pathological liar, and that the defense at her trial had not researched that, and it was not presented in her defense.

The judge took only two minutes to vacate her conviction and dismiss her case. He was quoted as saying, “Ms. Mellen is not only not guilty. I believe, based on what I’ve read, that Ms. Mellen is innocent.” “The justice system failed.” The prosecution cooperated.

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Today, in Hinton v. Alabama, the U.S. Supreme Court found the trial attorney’s failure to request funding for a sufficient expert to challenge the State’s ballistics experts constituted ineffective assistance of counsel. Opinion here.

Anthony Graves was wrongfully convicted and sentenced to death for a gruesome multiple homicide that occurred in Somerville, TX in August of 1992. He was ultimately exonerated and released from prison in 2010.

The prosecutor in the case, Charles Sebesta, under intense public pressure for a conviction of Graves with a death sentence, ignored all evidence pointing to his innocence, pressed ahead, and, as the special prosecutor appointed to handle Graves’ retrial said, “Sebesta manufactured evidence, misled jurors and elicited false testimony.” The special prosecutor laid the blame for Graves’wrongful conviction squarely at the feet of Sebesta.

Anthony Graves and the Houston law firm of Bob Bennett & Associates will file a grievance with the Texas Bar’s Office of the Chief Disciplinary Counsel seeking sanctions against Sebesta for his central role in Graves’ wrongful conviction and imprisonment.

With the help of the New Orleans Innocence Project, Jerome Morgan, who has spent 19 years in prison for a murder termed the “sweet 16 birthday shooting,”
has been granted a new trial.

The prosecution withheld exculpatory evidence in the case, and in Judge Darryl Derbigny’s order he states, “the evidence presented before this court is wrought with deception, manipulation, and coercion by the New Orleans Police Department,” and that “such newly discovered evidence undermines the confidence of the verdict and is fit for a new jury’s judgment.”

Additionally, two prosecution witnesses have recanted, and it was also determined that Jerome had ineffective assistance of counsel.

The Northern California Innocence Project (NCIP), acting as amicus, assisted veteran appellate and postconviction attorney Marc Zilversmit in reversing the conviction of Jamal Trulove, wrongfully convicted of murder after a single eyewitness implicated him in a killing San Francisco. Zilversmit is a long-time supporter of NCIP and it was a pleasure to be able to assist him in attaining justice for Mr. Trulove.

On January 6, following a grant of rehearing on direct appeal, the California Court of Appeal for the First Appellate District reversed the murder conviction of Jamal Trulove on claims of IAC and prejudicial prosecutorial misconduct.

Trulove’s murder conviction relied entirely upon the eyewitness, whose initial description was very vague and who had sat in a police interview room for 2 to 3 hours with a mug shot of Mr. Trulove on the wall in front of her, without ever identifying him. Her subsequent ID of him was tentative, and only many months later (after seeing him on an episode of a reality TV show) did the witness claim certainty. Attorney Zilversmit located two witnesses in support of the new trial motion, who testified to Mr. Trulove’s innocence. Nonetheless, the San Francisco Superior Court denied the motion and affirmed the verdict. Five additional witnesses then came forward, and Zilversmit filed a habeas petition alongside the direct appeal. The appeal raised claims of innocence based on eyewitness error, prosecutorial misconduct, and ineffective assistance of counsel.

The trial prosecutor had argued, without any support in the record, that the eyewitness was putting herself in danger by willingly implicating Mr. Trulove and that the jury should be as “courageous” as the witness. The Court of Appeal initially affirmed the conviction and denied the writ. Zilversmit then filed a petition for rehearing and reached out to NCIP for amicus support. NCIP filed an amicus curiae letter brief in support of rehearing and of granting the writ. The Court granted rehearing, ordered further briefing and reversed Mr. Trulove’s conviction on the grounds that the prosecutor’s argument was prejudicial misconduct and defense counsel’s waiver of the issue by failure to object deprived Mr. Trulove of the effective assistance of counsel. The Court of Appeal denied the habeas petition as moot without ever evaluating the serious flaws in the eyewitness testimony or the impact of the seven additional defense witnesses on the strength of the case. The California Attorney General is still deciding whether it will seek review in the California Supreme Court.

Luciano Peralta was the father of three children. He earned his living as a gardener. He had recently separated from his wife, Esther Cerrudo, but the two were on very amicable terms. On Sunday, October 27, 2013, Esther asked Luciano to watch the kids while she took care of some personal matters.

Argentinian police officers allege that a neighbor called to report a robbery at Esther’s residence. When they arrived, the officers arrested Luciano in front of his children. They proceeded to seize his motorcycle and the bicycle that belonged to Luciano’s young son.

Luciano was imprisoned in La Plata, a province in the capital city. When his ex-wife and mother arrived at the prison, Esther explained that she had asked him to be there and the children at the house were Luciano’s children. Nonetheless, they were told he would be spending the night in jail.

The following day, a public defender assured Luciano he would be free. She noted that he seemed lost and confused. Prior to his being released, Luciano began to suffer a panic attack. He started trembling and convulsing. His mother was at the prison, but she was not allowed to see him. The officers did not call a doctor nor did they call an ambulance. Luciano received no medical attention. Ultimately, he died in his cell.

Norma Silguero and Tatiana Peralta, mother and sister of the deceased. (Photo: @martinenlared)

We may never know the true motivations for the arrest or what really happened to Luciano at the jail. This case is another example of tragedies that can result from wrongful arrests and the need for reform within the Argentinian police.

A Connecticut judge on Wednesday ordered a new trial for Michael C. Skakel, a nephew of Ethel Kennedy who was convicted in 2002 of bludgeoning a neighbor with a golf club in 1975, saying his original lawyer had not represented him effectively.

Two men exonerated by DNA evidence in the rape of a Washington woman have reached a $10.5 million settlement with the county that wrongly imprisoned them for 17 years. Larry Davis, 57, and Alan Northrop, 49, were falsely convicted of raping a housekeeper in 1993, victims of technological limitations that prohibited the use of DNA testing on the small samples collected in the case. Ordered since then by a judge, and aided by the Innocence Project Northwest, to do conduct post-conviction DNA testing, Clark County (WA) retested the samples and found that neither belonged to the two men. Since their release, Davis and Northrop have fought Clark County in pursuit of restitution, citing negligence by the sheriff’s office and the lead detective on the case, Don Slagle. Davis and Northrop were accused based on sparse details provided by a victim who was blindfolded throughout the crime. The county finally decided to settle once Slagle took the stand when it was revealed that he not only had other leads, but he completely neglected them to pursue Davis and Northrop. Keep reading original story….

A federal judge has entered a default judgment against former Douglas County crime scene investigator David Kofoed in two wrongful prosecution lawsuits. Matthew Livers and Nicholas Sampson sued several Nebraska law enforcement agencies and officials, including Kofoed, who spend two years in prison for evidence tampering in the case. Prosecutors said Kofoed planted blood evidence in a car to bolster a case against Livers and Sampson, who were later exonerated. The other defendants agreed to pay a total of $2.6 million to the men to settle the suits. Continue reading…

Three men who were sentenced to death only to be exonerated years later have a message for Ohio and the rest of America: Abolish the death penalty because the judicial system doesn’t work. Delbert Tibbs, Joe D’Ambrosio and Damon Thibodeaux, who collectively spent almost 40 years on death row before being set free, are giving 10 talks in five days in Ohio this week in hopes of persuading people to oppose the death penalty. Continue reading....

In Vermont, an aggravated murder charge against John Grega, a Long Island, N.Y., man charged with killing his wife in 1995, has been dismissed, because of difficulties with additional DNA testing. The dismissal of the second murder charge against Grega comes a year after his 1996 conviction was dismissed, and a new trial ordered, because of new DNA evidence. Windham County State’s Attorney Tracy Shriver announced late Wednesday that murder charges against Grega would be dismissed without prejudice because of difficulties finding a lab to do necessary DNA matching of evidence taken from Christine Grega’s body.
Shriver, in a joint statement with Vermont Assistant Attorney General Cindy Maguire, said they “remain committed to continuing this investigation to seek justice for Christine Grega and her family.” In 2012, new DNA testing had revealed the presence of an unknown man’s DNA in her body, the discovery of which resulted in a judge ordering a new trial.

A U.S. judge ordered a new trial Wednesday for a Philadelphia man sentenced to death in 1992 for killing a high school student for her gold earrings. U.S. District Judge Anita Brody found that James Dennis’ conviction was based on dubious eyewitness testimony, bad police work and a poor defense by his lawyer, The Philadelphia Inquirer reported. She said he must be freed if he is not retried within six months.

In India, Supreme Court limits right of intermediate courts to overturn acquittals

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Fresh off a survey published in Legal and Criminal Psychology showing that many people show “contemptuous prejudice” toward the wrongly convicted, Direct TV is running a commercial that could make perceptions even worse.

The commercial apparently first ran in 2012, but it is now back on the airwaves. It shows how a lawyer who endured the frustrations of relying on cable TV failed to do his job, leading to his client’s wrongful conviction. It then shows the wrongly convicted man in prison longing for the day he can have his revenge on the attorney. The final scene shows the lawyer’s house blowing up as he arrives home one day.

The intended message is that cable TV is bad for you and that you should get Direct TV. But another message is that the wrongly convicted are angry and dangerous people when they are released. This is exactly the wrong kind of message those struggling to overcome a wrongful conviction need.

Sunday’s New York Times hits the nail on the head in an editorial here in which it laments that violations of the U.S. Supreme Court’s 50-year-old Brady rule, which requires prosecutors to disclose exculpatory evidence to the defense, remain ”widespread.” TheTimes might be overly optimistic, however, in its belief that open-files reforms like those adopted in North Carolina and Ohio that require full disclosure of law enforcement’s investigative files in a case will necessarily solve the problem.

Such rules will work only if prosecutors and law enforcement agencies follow them, and that’s far from guaranteed. In an Ohio case I am currently investigating, for example, information about the identification of an uncharged suspect was disclosed only after we learned from a witness that she had picked the man out of a photo lineup. The identity of a second suspect, which a co-defendant says she gave to both a detective and the prosecutor before she pleaded guilty, has still not been disclosed, nor has a summary of her statement that the only other person charged in the crime was not involved.

Defense attorneys and investigators should remain skeptical that prosecutors will always follow open-discovery rules any more than they always follow the Brady rule.

They should also be aware that another reform — the use of blindly administered sequential photo lineups — can still lead to misidentifications in the era of social media. In this same case, a witness admitted that she and others looked up the defendant’s photo on Facebook once they learned his name, which made picking out his photo later fairly easy. She now admits she was wrong.

The release this week of Amanda Knox’s book, Waiting to be Heard, and her hour-long interview on ABC last night puts the focus on the growing problem of citizens of one country being convicted in the unfamiliar court system of another country.

Knox has gained strong sympathy in her native United States. But feelings toward her in Italy, where her murder conviction occurred before being overturned, and in Great Britain, where murdered roommate Meredith Kercher was from, are less favorable.

The shoe is on the other foot in the murder conviction in the United States of a British citizen of Indian descent, Kris Maharaj, who grew up in Trinidad and made a fortune in Britain before moving to Florida. Maharaj has gained lots of support and media exposure in Britain, but relatively little in the U.S.

Maharaj got a rude introduction to the American justice system when two business rivals were killed in a Miami hotel room in 1986 and he was convicted of their murders and sentenced to death. Maharaj’s case had many sordid aspects, including a judge who was arrested mid-trial on bribery charges, a lackadaisical attorney (who is now a judge), police and prosecutors who withheld evidence, Caribbean con-artists and Columbian cocaine dealers.

Clive Stafford Smith bares these facts in his compelling book, The Injustice System: A Murder in Miami and a Trial Gone Wrong, which was previously published in Britain as Injustice.

Stafford Smith has an interesting perspective. The British citizen attended the University of North Carolina and graduated from Columbia Law School. He then spent two decades representing death-row clients in the United States before returning to Britain, where he is founder and director of Reprieve, a nonprofit legal defense firm. One of his American clients was Maharaj. In his book, Stafford Smith recounts how he developed convincing evidence that the murders for which Maharaj was sentenced to death were really committed by a Columbian hit man to exact revenge for the victims’ theft of a drug cartel’s profits.

Stafford Smith tells how he got Maharaj’s death sentence overturned with some regret. Why? Because, Stafford Smith says, American courts are far less likely to consider evidence of innocence if the defendant isn’t on death row. As a result, Maharaj, now in his 70s, languishes in prison with little chance of having the evidence Stafford Smith has developed ever considered. You can read more about the case here and here.

In addition to committing to spending on GOOD science (see my earlier post here… ), governments have a responsibility to provide free legal representation to those who cannot afford it. This responsibility however, is being increasingly shirked by many governments, who see legal aid (as it’s called in the UK) as a cost that can be cut. This is dangerous territory. One of the leading causes of miscarriages of justice is poor legal representation. In addition, if a defendant has NO, or very poor, legal representation, little can be done to challenge other defects in the criminal process and flawed evidence leading to wrongful convictions. In the UK, there are also major concerns that the lack of funding for lawyers will lead to many more legal professionals opting out of doing any criminal legal aid work, or doing so in such numbers (to make it worth their while financially) that they will merely be able to offer the most basic of services, with great temptation to get suspects to ‘plead’ early to avoid spending more time than necessary on making a defence. See some commentary on the cuts here…

The cuts are combined with measures such as ‘Best Value Tendering’, where legal firms must submit the lowest bid in order to secure rights to defend suspects – an immediate attack on quality. In response, the government is trying to introduce ‘QASA’ – Quality Assurance Scheme for Advocates. The introduction of this scheme has already led to unprecedented action among the legal profession and seems set to incite strike action soon. There are also suggestions being made that volunteer legal advice centres – including those set up in law schools, can pick up the work. Putting an incredible burden on these resource-poor and inexperienced individuals.

In the UK in particular, legal aid is being cut from certain individuals altogether, with prisoners no longer eligible. Proper legal representation is not a luxury. It will not be long before any economic benefits at all are wiped out by the increased costs of failed trials and wrongful convictions.

This month marks the 50th anniversary of one of the most significant Supreme Court decisions this country’s criminal justice system has ever known – Gideon V. Wainwright. The case, along with later decisions, cemented the 6th amendment right to counsel for anyone, regardless if they have the ability to pay.But in a quick scan of the media today of monthly magazines to news dailies on the topic, readers will find one unified reflection expressed — half a century after Gideon, we are far from realizing effective representation for all. Keep reading here…

Karen Smith was 8 when she was raped, beaten, stabbed and left for dead in the stairwell of a Bronx apartment house in 1975. Even in a city that was rife with crime and inured to violence, it was a horrific scene — the body of the little girl was found wearing only socks and underwear, a Nestle’s candy bar by her side and blood spattered four feet high on the wall.

Within a day, the police announced that they had apprehended a suspect, an 18-year-old neighbor named David Bryant who had a previous history of trouble with the law, including two arrests for sexual misconduct.

Mr. Bryant confessed to the murder, was convicted, and the case was largely forgotten.

But on Thursday, nearly 40 years later, a Bronx judge vacated the conviction and ordered Mr. Bryant released after finding that his lawyer at the time had provided a poor defense.

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You have the right to counsel. Or do you?

Above is Clarence Gideon, whose pro se petition to the Supreme Court resulted in the 1963 Supreme Court decision in the case of Gideon vs. Wainwright, confirming a constitutional guarantee of representation by counsel.

Recent budget crises across the country have been preventing Public Defenders’ offices from adequately staffing to carry the case load with which they are confronted. Some Public Defenders are even refusing to take on cases if they don’t meet certain criteria for ‘gravity.’

I was recently made aware of a quote from the ancient Greek playwright, Euripides. “Ours is a universe in which justice is accidental, and innocence no protection.” I often feel like this describes our current justice system exactly, but it’s not supposed to be that way, and it doesn’t HAVE to be that way. As with any system established and run by “humans,” the justice system, including those who run it, is exposed to the entire gamut of human frailties – pride, ego, ambition, greed, envy, passion, deceit, prejudice, hate, intolerance, power, influence, and on and on. The situation hasn’t really changed since ancient Greece, and I don’t see the nature of humanity changing radically any time in the next few thousand years, but there are things that can be done to at least mitigate the effect of these human shortcomings on the justice system. This post will be comprehensive and quite long – so, buckle up, and here we go. I hope that those of you who have the patience to read through to the end may find it interesting, enlightening, and hopefully thought provoking.

As you might guess from the title, this post will be “editorial” in nature. I’ve been doing innocence work for five years now, and have worked with seven different Innocence Projects from across the US and one foreign country. Over that time, I’ve been exposed to the fine details of over 40 different cases. These are all post-conviction cases in which there is a belief by the associated Innocence Project in the actual innocence of the defendant, and thus belief of a “wrongful conviction” on the part of the justice system. In addition, my research in these cases has exposed me to many other additional cases in which a wrongful conviction occurred. Consequently, I’ve seen a lot of the things that can go wrong in the justice system, and have been able to make judgments about how they happen. This post will coalesce my observations into statements about why I think the US justice system is broken. I’m going to be painting a pretty dark picture, so keep in mind that my exposure has been to cases in which the justice system failed, but there are lots of them. There really isn’t any substantiated data for how many wrongful convictions occur in the US every year, but recent data says it’s between 5,000 and 10,000 per year. One is too many. At the end of the post, we’ll talk about why it’s not getting fixed.

I’m not an attorney, and some may accuse me of being a naive, optimistic idealist (which I am) or of tracking muddy footprints through the hallowed halls of justice; but I am only reporting what I have observed. And if you think I’m making some of this stuff up, I strongly recommend you read the book False Justice: Eight Myths That Convict the Innocent by Jim and Nancy Petro. (It’s available from amazon.com for $16.) Jim is a former Attorney General for the state of Ohio, and Nancy, in addition to being an author and advocate, is also a contributing editor to this blog. Now, are there good and dedicated prosecutors and police out there who are absolutely committed to seeing that true justice is served? Of course. Are there qualified and capable attorneys who will do their utmost on behalf of their clients? Of course. Unfortunately, there are also “others.”